Brad Garber’s Case Law Update – December 4th, 2007

On this date: Nobody was born on this date. America celebrated its first Thanksgiving, in Virginia, in 1619. Father Marquette built the first dwelling in what is now Chicago, in 1674. In 1816, James Monroe was elected as the 5th President. In 1844, James Polk was elected as the 11th President. President Franklin Roosevelt created the Federal Alcohol Control Commission in 1933; he ordered the dismantling of the Works Progress Administration in 1942. Paul Hornung, of Notre Dame, won the 22nd Heisman Trophy Award, in 1956. (Subsequently played for the Green Bay Packers). Herschel Walker, of Georgia, won the 48th Heisman Trophy, in 1982. The “Judds” played their last concert together in Nashville, in 1991. In 1993, Dan Jansen speed skated 500 meters in 35.92 seconds, a new world record.

SAIF v. Vivanco, 0505809; A133147 (November 28, 2007)

SAIF appealed a decision from the Board that directed it to pay Claimant temporary total disability benefits for a period covering the time from which his employment was terminated, until his physician released him to regular work.

Claimant was injured on January 9, 2005. His claim was accepted. He returned to modified duty work in February. On July 3, 2005, Employer terminated Claimant’s employment due to poor performance. SAIF paid no total disability benefits to Claimant for the period after his employment was terminated until September 22, 2005, when he had surgery on his shoulder. Claimant requested a hearing, seeking temporary total disability benefits from July 4, through September 21.

The Board held that ORS 656.325(5) applied, instead of ORS 656.268(4), and that when Claimant’s employment was terminated, SAIF was required to resume the payment of temporary total disability benefits until Claimant’s attending physician approved of the specific duties to be performed in his pre-termination modified work position. Finding that Claimant’s attending physician had not agreed that Claimant could perform the specific duties of employer’s modified job, the Board concluded that SAIF had failed to satisfy the conditions necessary for termination of temporary total disability benefits under ORS 656.325(5)(a). SAIF pointed out that Claimant had already returned to modified duty work, and had worked at that job, full-time, until his employment was terminated. There was no practical need for the attending physician to approve of the job.

The Court agreed with SAIF, that ORS 656.268(4) unambiguously provides that benefits for temporary total disability continue until the worker returns to regular or modified work. Claimant had done that, without approval by his attending physician. Claimant’s employment termination was not a “refusal” of a job offer, under ORS 656.325 (something which the Board decided it was). The Board reasoned that, under ORS 656.325(5)(a), Claimant’s termination from employment required the resumption of TTD, unless and until his attending physician, pro forma, authorized his return to the modified position from which he was terminated. The Court disagreed with this analysis.Reversed

Rick Sandeno, 59 Van Natta 2779 (2007)

(ALJ Fisher)

One of the issues raised, in this appeal by Claimant, is that he should have been able to cross-examine Dr. Rich, on a report offered into evidence by the self-insured employer. The ALJ did not allow the cross-examination and Claimant alleged that the ALJ abused his discretion.

Claimant sustained a compensable nasal laceration and fracture on April 29, 2003. After claim closure, he asked that the employer accept a number of “new” conditions. After Employer denied compensability of the conditions, Claimant requested a hearing. By the time the hearing convened, on January 13, 2006, the deposition of Dr. Rich had been scheduled, after Employer submitted his report (Ex. 49). The record was left open for that deposition. On April 24, 2006, Employer advised the ALJ and Claimant’s counsel that it was having trouble scheduling the deposition and that it was withdrawing Dr. Rich’s reports. Claimant’s counsel then submitted Exhibit 49 and requested the deposition of Dr. Rich.

In a telephone conference, the ALJ ruled that Claimant no longer had a right to obtain additional evidence from Dr. Rich. He ruled that the record was closed and scheduled closing arguments. Claimant lost. He appealed and assigned, as error, the ALJ’s refusal to allow him to depose Dr. Rich. The Board agreed with the ALJ, recording its analysis, as follows:

“The record was left open to allow claimant to cross-examine, among others, Dr. Rich in response to the employer’s submission of Exhibit 49. (Tr. 1). This was permitted by OAR 438-006-0091(2), which allows the ALJ to grant a continuance to allow cross-examination upon a showing of due diligence. When claimant became the proponent of Exhibit 49, OAR 438-006-0091(2) ceased to apply because claimant’s examination of Dr. Rich would have been a direct examination rather than a cross-examination. Under such circumstances, it was within the ALJ’s discretion to close the record. See Clifford L. Conradi, 46 Van Natta 854 (1994)(if an ALJ leaves the record open for a limited purpose, it is within the ALJ’s discretion to exclude evidence that does not comport with that purpose).”

The Board found no abuse of discretion. Affirmed

Farrell E. Allen, 59 Van Natta 2788 (2007)

(ALJ Naugle)

This is another time loss case. Claimant was injured on December 27, 2002. His attending physician was Dr. Davis. His claim was closed on December 4, 2003. Sometime in September 2005, Dr. Thrall became Claimant’s attending physician. He took Claimant off work on September 12, 2005. On October 17, 2005, Dr. Thrall examined claimant, stating, “He will follow up as scheduled with Dr. Van Pett. The surgeon currently has him off work. I will recheck with him on 11/29/05 to review the recommendations at that time.” On the same date, Dr. Thrall filled out a form and wrote, “No work until recheck per Dr. Van Pett (No time loss is authorized beyond this date)… .”

On October 21, 2005, Dr. Van Pett saw Claimant, but did not mention his work status. Claimant did not see Dr. Thrall again, until August 28, 2006. On January 23, 2007, Dr. Thrall checked “Yes” in response to the following question: “Was your work release dated 10/17/05 an ongoing and continuing work release until either you or Dr. Van Pett modified his work release and returned him to work?” Claimant filed a request for hearing, seeking TTD from October 17, 2005 through February 6, 2006. The ALJ agreed with Claimant. The Board did not.

The Board observed, as follows:

“Here, Dr. Thrall was primarily responsible for claimant’s injury-related treatment by October 2005. However, Dr. Thrall was under the impression that Dr. Kitchel, claimant’s treating surgeon, had already taken claimant off work. * * * Consequently, we first consider whether there was an ongoing time loss authorization covering the disputed period (beginning October 17, 2005). See Dedera v. Raytheon Engineers & Constrs., 200 Or App 1, 7-8 (2005)(an attending physician’s ‘ open-ended’ time loss authorization does not expire when another physician assumes attending physician status).”

The Board found that Dr. Thrall was Claimant’s attending physician on October 17, when he authorized “No work until recheck.” The Board observed, “Because this authorization specified no work until a certain event (“recheck”), we do not find that it was an ‘ ongoing’ authorization.”

The Board continued, “Accordingly, on this record, we conclude that there was no ongoing time loss authorization as of and beyond October 17, 2005, the end of the September 12, 2005 authorization from Dr. Thrall.”

The next thing was to determine when Dr. Thrall’s time loss authorization ended. Because he stated it was to continue until Claimant saw Dr. Van Pett, and because that was on October 21, 2005, the Board found that authorization ended on that date. Modified; Claimant entitled to four days’ worth of time loss benefits

Suzanne M. Redlich, 59 Van Natta 2801 (2007)

(Order Denying Reconsideration)

On October 16, 2007, the Board dismissed Claimant’s request for Board review because it found that she had not requested review within 30 days of the ALJ’s Order. Claimant was appealing the Opinion & Order, unrepresented. After the Board dismissed her request for review, she wrote a letter to the Board, asserting that the dismissal was “unfair.”

Brad G Garber
Wallace, Klor & Mann, P.C.
Oregon Bar 1987
US District Court 1988
Washington Bar 1993
US Ninth Circuit Court of Appeals 2000